Myrа SIDES, etc., et al., Plaintiffs, Judy Weekes-Walker, on behalf of herself and all others similarly situated, Mona Thomas, on behalf of herself and all others similarly situated, Kayla Exford, on behalf of herself and all others similarly situated, Ritchie L. Stalnaker, on behalf of himself and all others similarly situated, Plaintiffs-Appellees, v. MACON COUNTY GREYHOUND PARK, INC., a.k.a. Victoryland, Defendant-Appellant.
No. 12-14673.
United States Court of Appeals, Eleventh Circuit.
Aug. 5, 2013.
725 F.3d 1276
in ascertaining the appropriate (percent) amount of damages recoverable.” 873 P.2d at 187 (emphasis added). Rather than addressing this language, Talavera raises аn issue not in debate: whether she has satisfied the standard for showing a “substantial” loss of chance. Further, Talavera points to no case—and we find none—in which a court has allowed a loss-of-chance theory to proceed without an finding of a specific percentage of chance lost. In fact, in the one case Talavera does rely on as supportive of her position, Pipe v. Hamilton, 274 Kan. 905, 56 P.3d 823 (2002), an expert did provide testimony establishing the percentage loss of chance to be attributed tо a defendant‘s negligence, see id. at 828 (noting that an expert had established that the plaintiff had a ten percent chance of survival). Thus, because Talavera has failed to provide expert testimony expressing her loss of chance in terms of a percentage, this claim fails.
III. Conclusion
Accordingly, for the reasons stated above, we AFFIRM the judgment of the district court.
Fred D. Gray, Sr., Stanley Fitzgerald Gray, Gray Langford Sapp McGowan Gray Gray & Nathan, Tuskegee, AL, Timothy
Before CARNES, Chief Judge, WILSON and EBEL,* Circuit Judges.
WILSON, Circuit Judge:
Macon County Greyhound Park, Inc. (MCGP) appeals the district court‘s grant of summary judgment for appellees, MCGP employees Judy Weekes-Walker, et. al (Weekes-Walker), on appellees’ claims under the Worker Adjustment and Retraining Act of 1988 (WARN Act),
I. Background
Known to many as Victoryland, MCGP was a former greyhound track turned multi-million dollar casino in Alabama that hosted electronic gaming on its premises. It was this massive growth, fueled by electronic gaming, that marked the start of MCGP‘s troubles. In December 2008, then Govеrnor Bob Riley issued an executive order that authorized the creation of the Governor‘s Task Force on Illegal Gambling. The Task Force began cracking down on Alabama establishments that offered electronic gaming. These establishments subsequently entered into litigation with the Task Force. In November 2009, the Supreme Court of Alabama invalidated a lower court‘s preliminary injunction against the Task Force, concluding that the gaming operators “failed to introduce substantial evidence from which the trial court reasonably could have concluded that [the game operators] had a ‘reasonable likelihood of success’ in proving that the electronic gaming machines seized constituted the game of bingo.” Barber v. Cornerstone Cmty. Outreach, Inc., 42 So.3d 65, 86 (Ala.2009).
The present case arises from a series of terminations that MCGP conducted
On January 5, 2010, MCGP laid off 68 employees due to scheduled renovations. MCGP portrayed this layoff as temporary in nature and concedes that it did not provide WARN Act notice to these employees. Approximаtely one month later, the Supreme Court of Alabama denied rehearing in Cornerstone and that same day, the Task Force arrived at Victoryland to seize MCGP‘s electronic gaming machines. MCGP immediately filed a same-day complaint against the Task Force in the Circuit Court of Macon County, which entered a temporary restraining order against the Task Force. See Tyson v. Macon Cnty. Greyhound Park, Inc., 43 So.3d 587, 589 (Ala.2010) (per curiam). On February, 4, 2010, however, the Supreme Court of Alabama vacated the circuit court‘s order and held that Alabama courts lacked subject matter jurisdiction to enjoin criminal prosecutions and investigations. Id. at 591.
Undoubtedly impelled by the Supreme Court‘s dissolution of the temporary restraining order against the Task Force, MCGP laid off all remaining employees on February 4, 2010. Once again, MCGP did not provide any formal notice under the WARN Act to affected employees. MCGP subsequently held a meeting with its employees to discuss unemployment issues. MCGP also posted on both its website and on interstate billboards that it had closed as a result of the Task Force‘s activities. There was no mention of the WARN Act in any of these post-layoff communications, nor any listed reason for not complying with the WARN Act‘s 60-day notice requirement. Then, on March 5, 2010, litigation resumed when Macon County officials and citizens filed a lawsuit in Macon County Circuit Court, arguing that the Task Force lacked authority to conduct investigations and prosecute in Macon County. See Tyson v. Jones, 60 So.3d 831, 837 (Ala.2010). Down to short strokes, MCGP appeared prepared for a favorable ruling. On March 5, 2010, the Macon County Circuit Court entered a second tеmporary restraining order against the Task Force, and MCGP almost immediately re-opened for business. The circuit court subsequently transformed the restraining order into a preliminary injunction against the Task Force. On July 30, 2010, the Supreme Court of Alabama reversed the circuit court and abrogated the injunction against the Task Force. Id. at 852. MCGP found itself bracing for a raid once more. On August 9, 2010, MCGP, in anticipation of a looming Task Force raid, permanently closed its doors on electronic gaming. As with the January and February layoffs, MCGP did nоt provide any formal WARN Act notice to affected employees.
In October 2010, the present litigation began when appellees filed a complaint in the district court alleging that MCGP violated the WARN Act when it failed to provide WARN Act notice of the layoffs. The court certified the case as a Federal Rule of Civil Procedure 23(b)(3) class action. The district court divided the plaintiffs
On appeal, MCGP argues that the district court erred in aggregating the January and February layoffs. MCGP contends that the January layoff was not covered by the WARN Act and that the February and August layoffs or plant closings are subject to the WARN Act‘s unforeseeable business circumstances defense.
II. WARN Act Violations
“We review de novo a district court‘s grant of summary judgment, aрplying the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir.2000). Summary judgment is proper “if the evidence before the court shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995) (internal quotation marks omitted). The WARN Act was intended to enable employees “to adjust to the prospective loss of employment, to seek and obtain alternative jobs and... to enter skill training or retraining that will allow these workers to successfully compete in the job market.”
A valid WARN Act claim requires the presence of the following three elements: “(1) a mass layoff [or plant closing as defined by the statute] conducted by (2) an employer who fired employees (3) who, pursuant to WARN, are entitled notice.” Allen v. Sybase, Inc., 468 F.3d 642, 654 (10th Cir.2006). In this case, MCGP‘s argument hinges on whether the three incidents (January, February and August), individually or aggregated, can be classified as a plant closing or mass layoff under the WARN Act.
A plant closing under the WARN Act is the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss at the single site of employment during any 30-day period for 50 or more employees excluding any part-time employees[.]
To determine who should receive notice, we look to
Our analysis begins with a plain language reading of the statutory text. See Harris v. Garner, 216 F.3d 970, 972 (11th Cir.2000) (en banc) (“[C]ourts should always begin the process of legislative interpretation... with the words of the statutory provision.“). Here, MCGP contends that the January layoff is not a covered event under the WARN Act and that the district court erred as a matter of law when it aggregated the January and February layoffs. First, as the district court held and the parties concedеd, the January 5, 2010 layoff was not, by itself, a covered incident under the WARN Act. The February 4, 2010 layoff, however, was a plant closing where 249 employees suffered an employment loss at a single site of employment. See
We disagree. We find that the WARN Act does not permit the January layoff to be aggregated with the February plant closing to quаlify as either a plant closing or mass layoff. Nonetheless, we think that under the statute, the employees laid off in January could potentially be considered “affected employees” that were entitled to notice of the February plant closing under the WARN Act.
To begin, the district court erred by using the definition of “plant closing” from
Therefore, and because the January layoff does not qualify as an independent WARN Act incident, the employees laid off in January will only have a colorable WARN Act claim if they were entitled to notice of the February plant closing. Whether they were entitled to notice in this case is in turn determined by how long the January layoff was expected to last. More specifically, whether MCGP is liable for the January layoff under the WARN Act depends on whether the January layoff was always intended to “exceed[] 6 months,” or whether the February plant closing turned what was an otherwise “short-term layoff,”2
Although the record does reflect that the January layoff was expectеd to be “temporary in nature,” Weekes-Walker, 877 F.Supp.2d at 1197, it is unclear exactly how long the January layoff was anticipated to last. Perhaps the January layoff was not expected to last more than 6 months, but then the subsequent February closing caused those employees to suffer “a layoff exceeding 6 months.”
Finally, the August 9, 2010 layoff was a plant closing under the WARN Act. Consequently, MCGP is liable for the Februаry and August violations under the WARN Act, with the January layoff to be properly addressed by the district court on remand. Because the resolution of the proper classification of the employees laid off in January is not dispositive of the second issue on appeal, we proceed.
III. Unforeseeable Business Circumstances Defense
Acknowledging its WARN Act violations, MCGP next attempts to assert the statutory defense of an unforeseeable business
Under the unforeseeable business circumstances defense, “[a]n employer may order a plant closing or mass layoff before the conclusion of the 60-day period if the closing or mass layoff is caused by business circumstances that were not reasonably foreseeable as of the time that notice would have been required.”
Again, our analysis begins with the statutory text. See United States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 1034, 137 L.Ed.2d 132 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific сontext in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997). Where there is statutory ambiguity we defer to the interpretation of the WARN Act by the agency charged with its implementation, the Department of Labor (DOL). See
Here, it is manifest that a WARN Act employer attempting to circumvent the 60-day notice requirement must still give some notice in accord with
Our conclusion on this point is strengthened by
Furthermore, the regulations separately list circumstances under which no WARN Act notice is required. See
Finally, we note that the “and at that time shall give a brief statement of the basis for reducing the notification period” language in
MCGP contends that even if there is a notice requirement under
Moreover, while the Governor‘s raid on Victoryland was highly publicized, MCGP cannot submit that each affected employee actually received notice. See
At bottom, “the broader context of the statute as a whole,” in conjunction with a plain language interpretation of
For the foregoing reasons, we affirm the district court‘s classification of the February and August layoffs as plant closings. See
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WILSON
UNITED STATES CIRCUIT JUDGE